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Does a 'famous' wannabe have a legal standing with censorship?

Lakebay, WA | February 1, 2013 5:32pm

A well-known 'wannabe' has her attorney sending cease and desists because we are negative about her. The atty. says we can't, because her name is trademarked, and that she is NOT a public figure, despite having been on a reality show, millions of articles about her, etc. Does she have good cause to sue? Does this not come under freedom of speech? Censorship? She's fine if you're saying nice things, so, people who like her client are okay to say whatever they want, but if you don't like her, you cannot? We're getting these from her 'agent' as well!

The contacts are via facebook and e-mail only, and the attorney assumes we're all the same person (about four of us, at least) and some users are using fictional characters as profiles, so they're sending cease and desist notes to fictional characters.

If the basis is trademark, first I would want to see evidence of some registration;

second for what service or product, because trademarks are by type of service or product;

third, how did she get a trademark except by using her name to brand her service?;

fourth, a trade name may be mentioned legally if your purpose is to point to product or service and comment on it, even if you are a competitor (“nominative fair use”), rather than to imply falsely that the product or service is yours and thus confuse potential buyers.

And if she is placing her brand in the public light to sell it then I think it makes her a public figure for the First Amendment, making the standard of proof she must meet in a defamation case quite high (Knew the statement was false or acted as if did not give a damn.)

If you are anxious about this, see a lawyer familiar with trademark law.

Licensed in Maryland with offices in Maryland and Oregon. Information here is general, does not create a lawyer-client relationship, and is not a substitute for consulting with an experienced attorney on the specifics of your situation.

Asker

Posted February 1, 2013 11:18pm

It has to do with facebook, and a derogatory page about her. Thing is, she trolled us using two different accounts with her name on them, using racial and homophobic slurs, which she would then remove, unaware we screen-capped them. The profiles were linked to her website and allegedly verified by facebook. Fake pages bearing her likeness claiming to be her got removed immediately by her management...these other pages, which they knew well about, were up for over a year. Now 'her people' are claiming those were fake (which I think burden of proof is on them, and that they would need to prove we "knew" they were fake, which, we thought they were her, and sounded like her), and they have also accused us of having photoshopped those posts, which we didn't. After her remarks came to light, she fell back on an old stand by---"I was hacked". She does it every time her online habits get her in trouble. Again, I think burden of proof is on them. They've made claims of 'positions' she's gained, such as 'spokesperson for x organization', and we've received e-mails from those organizations she certainly was NOT, that she is just calling herself that. Her mother/manager is known for telling whoppers and not being able to tell the truth, which I think would also be detrimental in court for them. Speculation has taken place on our parts, but no more so than any 'real' celebrity. If her attorney is claiming she is trademarked and we may not speak about her, then claiming she's NOT a public figure, I don't think she has her head together, and again, a certain amount of burden of proof is on them. Oh, and yes, the trademark is for real. What it is, is they think they can censor the public, because 99% of those who know who she is, don't like her, and they're trying to keep people from talking bad about her. You can't only allow those who 'love' her to speak about her, you can't allow tabloids to print your photo and stories about you, then complain some 'hater' mentioned your name and violated your trademark.

Asker, that's pointless babbling on like that. We are not here to wade through that, to be your crying towel, or to give that kind of detail. For that you need to hire a lawyer and pay a fee. Avvo is for finding a lawyer and the answers are to help you choose. Avvo is not where you go to avoid paying an attorney when you need one.

It is hard respond in a precise manner based on this fact pattern, but here are some general thoughts:

First, your right to free speech is not absolute-- there are some types of speech that are not protected by the First Amendment of the US Constitution. Defamatory speech (defamation) is one such type of speech that is not protected by the First Amendment.

Defamation is a 1) false and defamatory fact about the plaintiff; 2) published to a third party; 3) causing damage to the plaintiff’s reputation; 4) at the fault of defendant.

Whether a person is a public figure or not indicates whether the standard is malice or negligence: A false statement about a public figure would require a showing of malice (knowledge that the statement was false or a reckless disregard for the truth) while a false statement about a private figure would require a showing a negligence.

True statements or opinion statements MAY be protected, but be advised there is other causes of action which may make you liable (e.g., Appropriation of Plaintiff’s Name, Public Disclosure of Private Facts, Publication in False Light, Intrusion on Plaintiff’s Private Affairs, etc.)

I think the issues would need to be more clearly defined before any of us could offer any insights of value (although my colleague offered a very comprehesive overview of some of the issues below which I thought was very generous).

As I see it, they could complain from either a trademark angle or a publicity rights angle. Trademark rights are federal thus uniform but publicity rights laws will vary from state-to state.

I suggest you flesh it all out in more detail with a lawyer in private so the entire situation can be explored. Most of us here, including myself, offer a free phone consult.

Best regards,
Frank
Natoli-Lapin, LLC
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Your question really falls into three different areas of law - Constitutional (Free Speech), Tort (Defamation/Right to Privacy/Harassment) and Intellectual Property (Trademark).

In the U.S. you can generally say whatever you want so long as it is true or is opinion. If, however, you make false factual allegations against someone, you are asking for a defamation suit. Thus, free speech usually prevails unless a party can show that they they have been injured by false allegations of fact (your negative opinion is protected); or you have invaded a right of privacy (a little difficult to show if they are on reality shows, but not impossible); or you are harassing them. Most of these are applied generally under a reasonable person point of view.

With respect to infringing the trademark, that is usually the type of situation trademark attorneys laugh at. If you are commenting about her as a person, you are allowed to use her name regardless of whether it is trademarked or not as long as you are not creating a likelihood of confusion.

The challenge in responding any deeper than this is that each of these areas of law are very fact dependent. Thus, whenever you receive a cease and desist letter, it is best to find an attorney that addresses these kind of issues. While she may or may not have a case, few legal problems ever get better by ignoring them.

This is not legal advice. Even if it were, fee legal advice is worth what you pay for it. The facts of every case are different and should be addressed by a competent attorney who has all of the facts.

If you are hurting her rep or costing her money she has good business reason to sue regardless of the legal merits. Right off the bat you make derogatory comments such as "'famous' wannabe". I have little doubt you are borderline defamatory, thus giving her a reasonable basis to pursue legal claims. You are not an unfortunate victim as you self-righteously rationalize, I think. If you are communicating with her attorney, you are also a fool. Get your own attorney and let your attorney try to save your baddass rear. What the heck do you think, that a celebrity with a reputation to safeguard is going to stand idly by and get "smeared"? No, they are going to fight back and fight back hard. Welcome to the big leagues. If you can't stand the heat, stop flaming and chill. Hopefully for you, you have not started an inferno that will not subside until you get burnt. You need now is for an attorney since it is clear you do not understand the Public Relations game or entertainment industry where the size of a wallet often determines who makes the rules and whose rules people play by and whose song people sing. Next time, you might think more carefully when proceeding to set the world aflame that you might end up burning yourself.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.